On September 29, 2020, the Government introduced a Bill designating September 30th as the National Day for Truth and Reconciliation (the “New Holiday”), making it a federal statutory holiday.
In the recent decision of Marathon Motors Inc. and IAMAW (National Day for Truth and Reconciliation), a British Columbia Arbitrator ruled that the employer, Marathon Motors Inc. (the “Employer” or “Marathon”), must add the New Holiday to both of its collective agreements, given that the language used in the collective agreement left it open for change.
On March 31, 2021, one of Marathon’s collective agreements expired. During bargaining negotiations, the International Association of Machinists and Aerospace Workers (the “Union”) tabled a proposal to amend the collective agreement to include the New Holiday.
On or about September 22, 2021, Marathon advised the Union that it did not intend to recognize September 30th as a statutory holiday, despite the language of the collective agreement stating the following:
All employees shall receive eleven (11) Statutory Holidays … Or any other day proclaimed by the Provincial or Federal Government when the Company is forced by legislation to close down its operation.
September 30th passed without any recognition of the New Holiday, and on October 19, 2021, the Union filed a grievance for the Employer’s failure to recognize the New Holiday.
Arguments at Arbitration
The Union took its complaint to arbitration, arguing that the language of the collective agreement –
in particular, “when the Company is forced by legislation to close down its operation” – should not be taken in the literal sense. If it were, it would make the additional holiday provision meaningless and lead to an absurdity that the Employer is not forced to close for any statutory holiday. The Union argued that these words were intended to be descriptive as the Employer must pay premiums if employees are required to work on the holiday.
Further, the Union argued that the words “or any other day proclaimed…” should be given their plain meaning, as the intention of the wording was to provide employees with new statutory holidays when they were proclaimed by the provincial or federal government. The Union pointed to Boxing Day as an example, which is only a holiday in the Canada Labour Code (and not provincially), and argued that the parties intended to recognize all holidays proclaimed by the provincial and federal governments.
On the other hand, the Employer argued that the language in the collective agreement sets out a list of statutory holidays agreed to by the parties, and the language stating “or any other day proclaimed by the Provincial or Federal Government when the Company is forced by legislation to close down its operations” is a separate entitlement. The Employer further argued that "forced by legislation to close" is a qualifying condition that must be met before any other day is designated.
Further, the Employer stated that Boxing Day and Family Day were added during bargaining, noting that the appropriate forum to add an additional holiday is in collective bargaining, not in arbitration.
The Arbitrator determined that Marathon violated the terms of its collective agreement by not recognizing the New Holiday as a statutory holiday after it was proclaimed by the federal government.
The Arbitrator provided several reasons:
- The Arbitrator found that the word “or” was used to delineate circumstances by which a holiday is established. In other words, a day may qualify as a holiday because it is one of the eleven days set out in the collective agreement, or it may qualify as a holiday because it is proclaimed by the provincial or federal government.
- The Arbitrator highlighted that the Employer approached the matter of adding Family Day as a statutory holiday under the collective agreement as a “housekeeping matter,” which was inconsistent with the Employer’s argument that it does not have to recognize any newly proclaimed day in the collective agreement unless it is forced to close by legislation.
The Bottom Line
Collective bargaining is a collaborative process in which labour and management must work together to achieve a common goal. At the same time, the process is adversarial in nature.
The Arbitrator’s decision in Marathon Motors Inc. highlights the importance of having experienced Labour Law Counsel at the bargaining table in order to ensure the language in a collective agreement is clear, concise, and leaves no room for ambiguity which can be interpreted against the Employer.
At Hyde HR Law, our labour law specialists have extensive experience negotiating at the bargaining table for all types of businesses. We get to know your business and your financial interests in the most intricate of ways, allowing us to strategically negotiate and deliver the best results.
Please do not hesitate to contact us for expert guidance and assistance.